Beyond Blackstone: The Modern Emergence of Customary Law

Callies, David L.
Wesley-Smith, Ian
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Brigham-Kanner Property Rights Conference Journal
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Modern laws are normally enacted by a legislature or developed by a judiciary. However, there has been another traditional source of social order throughout history-customs, which are "popular, normative pattern[s] that reflect the common understandings of valid, compulsory rights and obligations."1 Although such customs and customary rights have long been part of the law applicable to land, water, and resources connected thereto, the Supreme Court of the United States' decision in Lucas v. South Carolina Coastal Council2 has elevated the importance of custom by naming it as a potential defense to categorical takings claims. A customary-or customary law-most broadly defined, is a practice or right of use exercised by a discrete and identifiable group of people (a tribe or native peoples, for example) over a particular area of land for a very long time and is recognized for certain purposes in a local court or tribunal. In most countries, the customary law may be modified or abolished by statute, ordinance, or rule enacted by government, generally through a legislative act. Thereafter, the precise definition and scope of custom as law usually depends upon the nature and history of the nation in which customary rights are claimed or exercised. This Article summarizes the modern emergence of customary law in the United States and internationally. It discusses two distinct forms of customary law, the first being custom, as recognized in English common law and discussed by Blackstone and the second being "native customs" that are exercised by indigenous peoples. Section II discusses Blackstone's definition of custom and the importance ofcustom in real property as a source of law in derogation of so-called common law. Section III explores native custom, with emphasis on the State of Hawai'i, which constitutionally protects the "traditional and customary" rights of Native Hawaiians, and on select foreign jurisdictions in which custom, often exercised by or in favor of indigenous peoples, plays a strong role in the law relating to land, water, natural resources, and self-government. Section IV analyzes the significance of custom within the United States as a background principle of a state's law of property, which gives state and local government a safe haven from liability under the categorical or total regulatory taking rules set out by the Supreme Court of the United States in Lucas. As this Article will demonstrate, poorly defined customary law runs the risk of intruding onto fundamental property rights such as the right to exclude. Judicial adherence to some form of the Blackstonian criteria for good customs would significantly ameliorate such dangers.
Callies, D.; Wesley-Smith, I. (2015). Beyond Blackstone: The Modern Emergence of Customary Law. Brigham-Kanner Property Rights Conference Journal 4, 151-198.
47 pages
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